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Contents Chapter
7 Looking
at the agenciesImmigration |
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CHAPTER
7
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| immigration |
Immigration menu: Complaints overview | Own motion investigations | Detention issues | Compliance | Referred immigration detention cases | Reporting on people held in immigration detention for two years or more | Freedom of Information | Input to Departmental processes and procedures
In 2005 amendments to the Migration Act 1958 (Migration Act) gave the Ombudsman the statutory responsibility to review the circumstances of people held in immigration detention for two years or longer. Later in that year, amendments to the Ombudsman Act 1976 (Ombudsman Act) conferred the title of Immigration Ombudsman on the Commonwealth Ombudsman. This section outlines the wide range of work we undertook in relation to immigration during 2006–07.
The number of approaches and complaints to the Ombudsman about the Department of Immigration and Citizenship (DIAC) stabilised in 2006–07. We received 1,379 approaches and complaints, compared to 1,300 in 2005–06. Figure 7.6 shows the trend in approaches and complaints over the period 2002–03 to 2006–07. We finalised 1,440 approaches and complaints with 40% investigated.
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Complaints about DIAC fall into three distinct areas:
Complaints about visa processing can raise complex issues stretching over a number of years, as the case study Parent visa application delays shows.
parent visa application delays |
CASE STUDY |
Ms J approached our office in 2003 raising concerns about DIAC’s processing of parent visa applications which had been lodged in 1996. When Ms J approached us again in 2005 she identified some further concerns. The applications had been made prior to a legislative change in December 1996 that altered the order of processing for parent visa applications. Our investigation found that Ms J had been given a queue date of 4 December 2002, when the primary criteria had been considered as satisfied. However, health checks had been completed in 1996. We raised our concern with DIAC about the delay in finalising the applications in 1996 and the decision to assess the applications against criteria introduced in December 1996 rather than those in place at the time the applications were lodged. DIAC subsequently advised us that arrangements had been made to change the queue date and to recommence processing the applications. It was estimated that, if the remaining criteria were met, the visas would be granted in 2006–07. |
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Visa cancellation complaints can range from the relatively straightforward to the very complex. In some cases, DIAC decisions to cancel visas are not subject to review, making it especially important that DIAC officers follow due process in making a cancellation decision. The case study Airport turnaround shows a case where DIAC set aside a non-reviewable cancellation decision following our investigation.
airport turnaround |
CASE STUDY |
A man complained on behalf of his son’s partner, Ms K, who had arrived in Australia on a tourist visa. Ms K’s visa was cancelled during the immigration clearance process when DIAC staff formed the view that Ms K may not comply with the conditions of the visa. Ms K was required to leave Australia immediately. In our investigation we listened to the taped record of interview conducted prior to the cancellation of the visa and reviewed the relevant documentation. Our investigation established that adverse information had been provided by a third party and taken into account in the decision-making process. The information had not been put to Ms K so that she could respond, as required by s 57 of the Migration Act. We raised our concern with DIAC about the process undertaken to cancel the visa. DIAC agreed to set aside the decision to cancel the visa and to apologise to Ms K. In addition, DIAC agreed to consider any request for compensation. |
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An increasing proportion of complaints about visa-processing delays relate to the time taken by DIAC to obtain and assess security clearances from other government agencies including the Australian Federal Police, the Department of Foreign Affairs and Trade, and the Australian Security Intelligence Organisation (ASIO). Our investigations to date have identified that the delay in some cases was beyond the control of DIAC. In 2006–07 we closed 13 complaints where this was an issue. In some cases we have been able to refer the complaint to the Inspector-General of Intelligence and Security (IGIS). IGIS oversights the operations of ASIO and is able to consider why a matter is protracted. We are also seeking to establish liaison protocols with other agencies so that in future such complaints can be resolved as quickly as possible.
In early 2006 we released a report of an own motion investigation DIAC’s administration of s 501 of the Migration Act (Report No 01/2006). Since then we have liaised regularly with DIAC regarding progress in implementing the report recommendations.
In December 2006 the Secretary of DIAC advised that ‘the Department has made significant progress in addressing the deficiencies that your report identified ... and has initiated a broad and comprehensive programme of reform aimed at improving the overall management and resourcing of character decision making’. DIAC also advised that a centralised processing centre had been established, with a view to improved consistency in s 501 visa cancellation decision making.
In response to one recommendation in the report, DIAC agreed to review the cancellation decisions for individuals who were still in immigration detention and/or awaiting removal. DIAC expects to finalise this review in early 2007–08. We continue to monitor the implementation of the recommendations made in the report. The case study Sole parent shows a positive outcome for one person whose case was reviewed.
sole parent |
CASE STUDY |
Mr L arrived in Australia in 1982 when he was 10 years old. His resident return visa was cancelled under s 501 of the Migration Act in April 2002. Mr L was detained from May 2002. At the time Mr L was detained he had custody of his 10-year-old son, whom he cared for with the assistance of the child’s grandmother. DIAC’s review of the cancellation process identified that in making the decision to cancel Mr L’s visa, the decision maker had not given adequate weight to a primary consideration—the best interests of the child. The Ombudsman report on s 501 cases highlighted the need to ensure that information presented to decision makers is complete and up-to-date. In relation to the best interests of the child, the report recommended that an independent assessment be undertaken by a qualified social worker/psychologist on the impact on a child of the possible separation from or removal of its parent from Australia. As a result of the review, DIAC recommended to the Minister that Mr L be granted a permanent visa. DIAC advised us in December 2006 that the Minister had granted Mr L a resident return visa using the discretionary powers provided in s 195A of the Migration Act. Mr L was released from detention when the visa was granted. |
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The 2005–06 Ombudsman annual report advised of the outcome of an investigation, Department of Immigration and Multicultural Affairs: Management of a frail aged visitor to Australia (Report No 05/2006). DIAC accepted all the recommendations in the report, and has implemented measures to improve communication with, and treatment of, DIAC clients. To date the changes include:
DIAC has also canvassed the issue in a bridging visa review, which is under consideration by the Minister.
In response to a number of complaints, we conducted an own motion investigation into the complaint-handling process of the Migration Agents Registration Authority (MARA). The report (Report No 05/2007), released in June 2007, recognised that MARA’s complaint-handling processes had improved significantly in the previous 12 months. The report noted there was much still to be done by MARA to ensure that those most vulnerable are aware of MARA’s complaint-handling system and have appropriate access to it, and that both complainants and agents can have confidence in the outcomes achieved. MARA accepted the recommendations in the report.
We are conducting an own motion investigation into DIAC’s notification of reasons for decision and review rights to refused visa applicants. The investigation is assessing whether decision makers are meeting their legislative obligations to inform applicants of the criteria on which an application was refused and the availability of relevant review rights. We are also assessing how effectively this information can be understood and responded to by a diversity of clients. The report will be released early in 2007–08.
‘We are conducting an own motion investigation into DIAC’s notification of reasons for decision and review rights ...’
We have developed a program of own motion investigations for 2007–08 that includes examination of DIAC’s Safeguards program, the administration of debt waivers and debt write-offs, and issues regarding police responses to allegations of assault or other criminal activity at Villawood Immigration Detention Centre.
Staff from our offices conducted regular complaint-taking sessions at the mainland immigration detention centres (IDCs). Staff also regularly attended Client Consultative Meetings, Food Delegates Meetings and Community Consultative Group Meetings. These meetings provide an opportunity to monitor complaint and systemic issues and their resolution. Regular attendance at the IDCs enabled our staff to better appreciate the detention environment and provide an effective complaint service to detainees. These regular visits will continue in 2007–08.
In addition, staff visited and inspected five mainland IDCs, two immigration residential housing centres, and a motel where unaccompanied illegal foreign fisher minors are accommodated.
Our aim was to visit and examine the detention facilities with particular emphasis on assessing the provision of detention services and whether such services were being delivered in accordance with detention standards. We examined a range of services including reception and discharge procedures, property storage and recording, complaint-handling and incident-reporting systems, food preparation and storage, access to health services, and the provision of meaningful activities. We interviewed DIAC, GSL (Australia) Pty Ltd (GSL), health services and kitchen staff. At the end of each visit we provided feedback to centre management, and to DIAC’s and GSL’s national offices on selected issues. In 2007–08 we will commence visits to people in community detention as well as unannounced visits to IDCs.
Health remains an important complaint and oversight area. In 2006–07 we closed 93 complaints that raised one or more health issues. It is apparent from our investigations that detainees generally have appropriate access to a range of health services at IDCs following significant reforms in this area.
For example, one complaint we received concerned a person who had been transferred from an IDC to a hospital for psychiatric treatment. The complaint made on the person’s behalf centred on potential complications arising from the treatment. We investigated the complaint and made enquiries of the treating doctors with DIAC’s assistance. We were satisfied that the treatment was carefully considered and evaluated by the treating doctors, and was administered with the person’s consent.
More options for alternative forms of immigration detention have led to a reduction in the number of people in IDCs. However, a greater proportion of people now in the IDCs have a criminal background and have had their visas cancelled under s 501 of the Migration Act. From complaints and visits to IDCs we have become aware that this is having an adverse effect on the day-to-day experience of people in detention with incidents of assault, theft of personal items and bullying being reported.
As part of the Immigration Ombudsman function, we are implementing a comprehensive program of monitoring and inspecting DIAC’s compliance activities. By adopting a more proactive role, we aim to provide a higher level of independent oversight and earlier identification of problems. During 2006–07 we conducted a pilot study of the process used to remove people from Australia. We have commenced a full program of inspections/monitoring of DIAC administration in this area. We are also developing a wider inspection and monitoring program for DIAC compliance activity, with emphasis on DIAC’s identification and location of unlawful non-citizens and those who have breached their visa conditions.
‘... we are implementing a comprehensive program of monitoring and inspecting DIAC’s compliance activities.’
During the year we undertook an investigation into the administrative actions of compliance officers in relation to the death of a South Korean national during compliance activity in Sydney in July 2004. Our investigation identified serious administrative shortcomings in many areas of the DIAC compliance action—specifically record keeping, the search warrant administrative process, the execution of warrants and the clarity around the circumstances of escorting someone to other premises rather than detaining them under the Migration Act. We note that these issues have been raised in other recent inquiries, and are being addressed in DIAC’s current reform program.
DIAC has introduced new descriptors in its primary database system to more accurately reflect the reason for a person’s release from immigration detention when they are lawful. In March 2007 DIAC provided us with its first consolidated report relating to individuals released under the new descriptors in the year to February 2007. The report showed further examples of many of the problems identified in the 247 referred immigration detention cases. However, DIAC has generally been responsive in addressing each case. We will continue to receive consolidated reports for examination every six months. Our office will also continue to monitor DIAC’s use of these descriptors and may look into some cases in more detail if appropriate.
During 2006–07 we completed our investigation of 247 immigration detention cases referred to the Ombudsman by the Australian Government in 2005 and 2006.
The investigation of these cases involved reviewing DIAC’s paper files, database records and the detention dossier for each person. In some cases, we sought responses to specific questions and conducted interviews with DIAC officers, clients, their representatives or other agencies. Extensive analysis was undertaken of DIAC’s policies and procedures, and briefings were sought on a range of issues. Each investigation was reported in a case analysis, which outlined the sequence of events, discussed areas of concern and identified areas of potential administrative deficiency. In the majority of cases we recommended that DIAC consider whether a remedy should be provided to acknowledge or redress any suspected unlawful action.
‘... we completed our investigation of 247 immigration detention cases referred to the Ombudsman ...’
The issues arising from the investigation of the 247 individual cases formed the basis of six consolidated public reports and individual public reports on two of the cases. Those reports highlight areas of systemic failure in DIAC administration and compliance activity and recommended a combination of administrative, systems-based and policy changes within DIAC.
The first report, released in March 2006, related to the immigration detention of Mr T (Report No 4/2006). Mr T, an Australian citizen, was detained on three separate occasions for a total of 253 days after the police referred him to DIAC. The report highlighted significant problems faced by DIAC in managing cases of people with mental illness.
A further three reports were released in December 2006. One dealt with the detention of a person referred to as Mr G, who was an Australian resident and also suffering from a mental illness (Report No 6/2006). The second report was the consolidated report into mental health and incapacity, where a person was suffering from poor mental health or incapacity at the time of their detention (Report No 7/2006). The third consolidated report—children in detention—dealt with cases where a child was taken into immigration detention (Report No 8/2006). It highlighted significant problems regarding DIAC’s management of cases involving children.
The remaining consolidated reports were finalised in June 2007. These reports dealt with the following issues.
The case study of Mr A in the report on ‘Other legal issues’ related to a permanent resident whose permanent residence status ceased following a DIAC error. He was subsequently detained for more than three years. We recommended that DIAC review the circumstances of his case and consider the actions of its staff and whether there were lapses in professional standards in relation to the way his case was managed. The report also recommended that DIAC give consideration to proposing a legislative amendment to allow variation of decisions based on legal or factual error.
DIAC cooperated fully with the investigations into these cases. Generally DIAC has agreed with the recommendations in the consolidated reports and is undertaking a significant reform process to address many of the issues identified. The Ombudsman will continue to monitor DIAC’s progress in implementing these recommendations and DIAC’s handling of the individual cases. All the reports are available from the Ombudsman website at www.ombudsman.gov.au.
‘The Ombudsman will continue to monitor DIAC’s progress in implementing these recommendations ...’
Under the Migration Act the Ombudsman is required to review the cases of people held in immigration detention for two years or more. Section 486O of the Act provides that the Ombudsman, upon receiving a report from DIAC, is to provide the Minister with an assessment of the appropriateness of the arrangements for the person’s detention.
DIAC’s report must be provided to the Ombudsman within 21 days of a person having been in detention for two years. If the person remains in detention, new reports to the Ombudsman are to be prepared at six-monthly intervals. The Ombudsman is required to undertake an assessment, even if the person has since been released from detention.
The Ombudsman’s report on a person is to be provided to the Minister as soon as practicable and the Minister is required to table the report in Parliament, suitably modified to protect privacy, within 15 sitting days. A copy of the report with identifying details deleted, together with the Minister’s tabling statement, is published on the Ombudsman’s website.
As at the end of June 2007, this function had been operating for two years. The priority remains focused on preparing reports for people in IDCs, families with children in detention, people who have a significant illness, people on temporary visas and people with other compelling reasons for an early report.
We conduct face-to-face interviews with those in detention wherever possible, especially in relation to the initial report. Telephone interviews are generally conducted for the subsequent interviews as well as in situations where a person has been granted a permanent visa and is no longer in detention.
‘We conduct face-to-face interviews with those in detention wherever possible ...’
Table 7.2 sets out the number of s 486N reports the Ombudsman received from DIAC in relation to long-term detainees, including the second, third, fourth and fifth reports for people who remain in detention.
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From the introduction of the function until the end of June 2007, the Ombudsman had provided 211 reports to the Minister, of which 199 had been tabled in Parliament. A number of the reports provided to the Minister were combined reports—for example, combined first and second reports for someone on whom we had not reported before we received their second s 486N report from DIAC.
One third of the people covered in the reports were citizens of the People’s Republic of China, 10% were citizens of Iran, 8% were citizens of Afghanistan, and 8% were citizens of Vietnam.
Significant mental health issues are a continuing area of concern for long-term detainees and 40% of the reports completed by the Ombudsman raised this issue.
A total of 218 recommendations were made in the 211 reports sent to the Minister, with about 40% of the reports containing no recommendation. The following statistics are based on an analysis of the responses in the Minister’s statements tabled in the Parliament:
On some occasions a decision providing a different outcome followed the tabling statement.
The lack of detail in Ministerial tabling statements may mean that it will not be possible to provide a similar analysis of the s 486O report recommendations in future.
In 2004–05 and 2005–06 we reported on significant delays in the processing of FOI requests by DIAC, and the strategies that were being implemented to address the situation.
Whilst DIAC has increased the resources within the area and introduced a range of initiatives aimed at improving FOI processing, the situation has still not improved to the degree we expected. The processing of many FOI requests far exceeds the statutory timeframe. At 30 June 2007 there were 2,793 FOI requests outside the statutory timeframe, compared to 1,101 at 30 June 2006. This continues to be unsatisfactory.
We are aware that DIAC has recently conducted an internal audit into their management of FOI requests and it is expected that the final report will identify opportunities to streamline processes or reduce the number of FOI requests received. It is also expected that a recent amendment to the Migration Act will mean that individuals no longer need to use FOI to access their international movement records. This should reduce the FOI workload.
DIAC is continuing to provide our office with regular two-monthly reporting on progress in dealing with the backlog. We will continue to monitor the number of FOI requests outside the statutory timeframe. In the meantime, we accept complaints about FOI delays and may investigate individual complaints if we consider that a particular matter should be given priority, or that a complaint raises a special area of concern in relation to DIAC’s handling of requests.
We were pleased to be invited by DIAC to provide comment on draft departmental documents on numerous occasions. For example, with Dr Vivienne Thom as a member of the Values and Standards Committee and the College of Immigration Board, we have commented on a wide range of proposed training modules for compliance and detention officers attending the College.
We also commented on a range of DIAC policy and information documents, including the s 501 Handbook, detainee information material, DIAC’s Compliments and Complaints Policy, DIAC’s Stakeholder Engagement Practitioner Handbook and a discussion paper on measures to improve settlement outcomes for humanitarian entrants.
These opportunities allowed our office to reinforce issues raised during the investigation of complaints, including the need for improved record-keeping practices, the importance of effective proof of identity procedures, and the need to provide interpreters during interviews.
It has been pleasing to have the opportunity to contribute comments to the policy and information products under development for the introduction of DIAC’s revised Compliments and Complaints Policy. The revised policy indicates that DIAC is committed to becoming more responsive to the needs of customers and to improving customer service through responding to customer complaints and feedback.
As an observer on DIAC’s Detention Health Advisory Group, the office was invited to comment on new overarching health policies, including the Detention Health Framework and Detention Health Standards devised by the Royal Australian College of General Practitioners. DIAC also invited us to comment on various other draft detention documents, including the request for tender exposure drafts for detention services and detention health services, and detention complaints and visits policies.
‘... DIAC is committed to becoming more responsive to the needs of customers and to improving customer service ...’
Ombudsman representatives attended community stakeholder consultation sessions held by the Immigration Detention Advisory Group (IDAG) in Darwin and Melbourne. We will also attend the IDAG community stakeholder consultation sessions scheduled for later in 2007 in Adelaide, Brisbane, Perth and Sydney.
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Looking
at the agencies
